H v Police HC Hamilton CRI 2006-019-6031

[2007] NZHC 135

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-019-006031

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 March 2007

Counsel:         G Matenga for Appellant

CD Bean for Respondent

Judgment:      12 March 2007

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:       Matenga Milroy, P O Box 207, Hamilton for Appellant

Almao Douch, P O Box 19173, Hamilton for Respondent

H V  POLICE HC HAM CRI 2006-019-006031  12 March 2007

Introduction

[1]      Following a defended hearing before Judge DM Wilson QC in the Hamilton District Court on 15 January 2007, the appellant was convicted of driving while disqualified and giving false or misleading information.   On the charge of driving while disqualified, he was fined $500 and on the charge of giving false or misleading information, he was fined $250.   On both charges he was ordered to pay costs of

$130.  He appeals against his convictions.

Background

[2]      The main prosecution witness was Constable Bevan Gibbs who said that on

10 May 2006 he stopped a speeding car on State Highway 23 at Whatawhata near Hamilton.     The  driver  did  not  produce  a  driver’s  licence  or  any  form  of identification.  He gave his name as Brent Kenneth Pini, born on 19 December 1970. He gave a rural address in the Hamilton area.

[3]      Constable Gibbs made radio enquiries and found the person of that name to be a licensed driver.   However, he remained unconvinced of the identity of the driver.    He  wrote  notes  of  the  appearance  of  the  driver  on  the  back  of  the infringement notice – “ number one cut, wrinkly head, big scar left forehead, grey/green eyes, male, Caucasian, solid, 180 centimetres tall, goatee, moustache, no tats”.   In evidence Constable Gibbs said that the reference to the driver’s wrinkly head referred to an unusual feature of the skin on his scalp.  He said it was unusually wrinkly, quite unlike anything he had seen in anyone before, with a texture “something between an orange peel and a passionfruit skin”.

[4]      Still unconvinced that the driver had correctly identified himself, Constable Gibbs made further enquiries and, on 12 May 2006, he believed he had identified the appellant as the driver from police photographs and records.  He also established that the appellant was currently disqualified from holding or obtaining a driver’s licence.

[5]      Shortly afterwards he visited the appellant’s last known address and spoke to his father, Robert H  , who told him that he was not on speaking terms with his son and did not know his address.   Constable Gibbs discussed the appellant’s appearance with his father who told him that the scar on the appellant’s forehead resulted from a car accident when he was a teenager.  He said Brent Pini was the driver of the vehicle involved in the accident.

[6]      Constable Gibbs subsequently wrote to the appellant at his home address advising him of his intention to charge him with driving while disqualified and supplying false information.  He invited him to respond with an explanation.  After receiving no reply he sent the traffic offence notice and later laid informations.  On

2 August he spoke to the appellant in the cells at the Hamilton Court and confirmed that he was the person he had spoken to on 10 May.

[7]      For the defence the appellant himself gave evidence.  He denied that he was the  driver  of  the  car.    He  said  that  on  10  May  he  accompanied  his  father  to Palmerston North, leaving at about 5.00 a.m.  He said the purpose of the trip was to sort out the belongings of his grandfather who had died sometime before.

[8]      The appellant’s father also gave evidence.   He corroborated the appellant’s evidence that he had driven with the appellant to Palmerston North on 10 May to help sort out his father’s belongings.  In cross-examination he said he hadn’t checked any documents or receipts to ascertain that the trip took place on that date but he was certain it did.  He was asked to explain how the trip could have occurred at a time when he was not on speaking terms with his son as he had told Constable Gibbs.  He said that remark was made as a result of an argument they had had in the course of the return journey.

Judge’s decision

[9]      After  reviewing  the  prosecution  evidence,  the  Judge  addressed  the  alibi evidence.  He said there were discrepancies between the two accounts of the trip to Palmerston North but the details surrounding the trip gave it “an air of credibility”. He said, “I do not find as a fact that the trip did not take place”.  The Judge said,

however, that the real issue was the date the trip took place.  He said the appellant’s father was unable to provide any real basis for pin-pointing 10 May as the date.  The Judge  noted  that  he  had  not  been  asked  to  focus  his  mind  on  it  until  some considerable  time  afterwards;  his  brief  of  evidence  was  not  prepared  until

17 November.   He had a diary but the diary did not have dates in it.   Although Mr H   Senior had said that the trip was made because of time available in his work schedule, the Judge said he did not produce any work schedule.  Accordingly, the Judge concluded:

The basis of his certainty that it was 10th of May was never really established and I discount the alibi.  I understand that the prosecution has to exclude the alibi beyond reasonable doubt but the factual basis for the alibi applying on

10th  May is not established to my satisfaction, bearing in mind the overall onus of proof.

[10]     The   Judge   said   the   question   then   came   down   to   the   adequacy   of identification.  He referred to the opportunity afforded Constable Gibbs to view the unusual features of the appellant and to the careful enquiries he made immediately afterwards and said he was satisfied beyond reasonable doubt that Constable Gibb’s identification of the appellant as the driver was reliable and should be accepted.

Ground of appeal

[11]     Mr  Matenga  submitted  that  the  prosecution  failed  to  prove  the  charges because the police had been unable to show that the alibi evidence was false. Referring to Adams on Criminal Law at 2.1.01(2) and R v Matoka [1987] 1 NZLR

340 (CA), he said the Judge correctly directed himself to the requirement for the prosecution to negative any defence once a credible narrative has led him to entertain the reasonable possibility of the existence of a defence.   However, Mr Matenga argued the Judge then subtly reversed the onus when he held that the factual basis for the alibi had not been established to his satisfaction.  Mr Matenga submitted that the Judge, having accepted that a trip had taken place, should have required the prosecution to prove beyond reasonable doubt that the trip taken place on a different date.

Discussion

[12]     The requirement for the prosecution to negative a defence beyond reasonable doubt applies equally to an attack on the existence of the actus reus or mens rea (of which an alibi is an example) or where the defence relies on matters of justification and excuse: see Adams on Criminal Law at Ch 2.1.01(2).   However, the cases in which the accused has an evidential burden to establish a credible narrative are those in which there is reliance on matters of justification and excuse, despite the existence of the actus reus and mens rea: see Adams at Ch 2.1.02.

[13]     The task of the prosecution in this case was to prove beyond reasonable doubt that the accused was the driver.  In order to do that it was required to exclude the reasonable possibility that the accused was driving to Palmerston North with his father that day and could not have been the driver of the speeding car.

[14]     On my reading of the decision, the Judge correctly applied the onus of proof. He accepted as a reasonable possibility that the appellant and his father went to Palmerston North at some time but he does not accept that the trip took place when the appellant and his father said it did.   I acknowledge that the Judge’s choice of words - in particular, his statement that the factual basis for the alibi applying on

10 May had not been established to his satisfaction – might at first blush suggest that he was placing an onus on the defence.  However, when that passage is read in the context of his overall analysis of the evidence, it is clear that he is simply saying the defence evidence had not raised the reasonable possibility of the trip having taken place on the day on which the speeding driver was apprehended.

[15]     This finding contrasts with the Judge’s earlier acknowledgement that a trip may have taken place.  It is clear that he accepts the reasonable possibility of a trip taking place but not of it occurring on 10 May.

[16]     Mr Matenga was insistent that the evidence provided a credible narrative of the trip having taken place on 10 May.  However, on my reading of the evidence, there is nothing to indicate that the appellant’s father relied on anything more than his unaided recollection.  There is no reference to contemporary documents or to his

work schedule.  And as the Judge pointed out, the appellant himself, when pressed in cross-examination, acknowledged that he could pin-point the date only because of what his father had told him.

[17]     The identification evidence was extremely strong.  The distinctive features of the appellant’s appearance, noted at the time by Constable Gibbs and leading to identification from police records a few days later, provided a powerful case for the prosecution, particularly given evidence from Constable Gibbs that the driver did not look at all like Brent Pini whom he later met.

[18]     I am satisfied the Judge did not misdirect himself as to the onus of proof. The prosecution case was overwhelmingly strong.  The alibi evidence was flimsy. The convictions are safe.

Result

[19]     The appeal is dismissed.